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2022 (12) TMI 1441 - HC - Income TaxApplication and entitlement of Section 43B - Tribunal confirming the disallowance of service tax payable u/s 43B, particularly when the same was not charged to the Profit and Loss Account or claimed as a deduction in the computation of income - whether there is any evidence or material on record for the Tribunal to substantiate its finding that the service tax payable represents service tax collected by the Appellant? - As argued the liability becomes payable when it is received and accounted for by the assessee. Therefore, applying Section 43B to the case on hand is illegal - alternatively argued that having regard to the jurisdictional limitations of this Court in an appeal u/s 260A when a patent error is pointed out in the circumstances considered by the Tribunal, the assessee should be afforded an opportunity before the Tribunal to canvass what the claim was and why the disallowance made by the AO is illegal and unsustainable. HELD THAT:- We have perused the order of the Assessing Officer, CIT (Appeals), and excerpted the mistake committed by the Tribunal from the material on record. We are of the view that the questions now formulated are substantial in nature, for conclusions are recorded on an erroneous appreciation of the reply of the assessee. Therefore, for statistical purposes, the questions are answered in favour of the assessee and against the Revenue. The common order is set aside and remitted to the Tribunal for consideration and disposal in accordance with the law.The parties, if so advised, are given the liberty to bring on record such material as respective parties may deem fit in support of their contentions. Assessee also claims the application of Section 145A of the Act. For the view we have expressed above, it is clear that we have not examined the availability or the extent to which the assessee’s case could be considered under Section 145A. All contentions are left open to be considered by the Tribunal.
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